Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This appeal originated in the submission of a request to inspect public records by Ms. Lela Eisenback to the Spencer County Public Schools on December 7, 1994. Ms. Eisenback requested access to letters concerning her son's behavior on the school bus which were discussed at the November 21, 1994, Spencer County Board of Education meeting. She indicates that she does not know who wrote the letters, whether other children are mentioned in the letters, or how the letters "got to the Board of Education."
On behalf of the Spencer County Public Schools, Ms. Nancy Stout, Assistant Superintendent, denied Ms. Eisenback's request, advising her that the letters "are from several students (who are minors) and parents of the Spencer County School System. " It was her position that the letters are exempt pursuant to KRS 61.878(1)(a), relating to personal privacy, and KRS 61.878(2)(h), 1 relating to correspondence with private individuals. Ms. Stout did not elaborate.
We are asked to determine if the Spencer County Public Schools properly refused to permit Ms. Eisenback to inspect and review the requested records. We find ourselves in an unusual posture in this appeal. Whereas in the usual appeal we must ascertain whether a public agency's denial of access to records under certain enumerated exceptions to the state's Open Records Law was consistent with that law, here we must ascertain whether the cited exceptions notwithstanding, the agency is obligated to permit inspection under the state's Family Education Rights and Privacy Act, KRS 160.700, et seq., and the federal Family Educational Rights and Privacy Act of 1974, 20 USCA § 1232g. Because the Spencer County Public Schools' denial of Ms. Eisenback's request has the effect of denying a parent access to the education records of her child, in contravention of KRS 160.715 and 20 USCA § 1232g(a)(1)(A), we conclude that the school system has an affirmative duty to permit Ms. Eisenback to inspect and review those records.
The Family Educational Rights and Privacy Act of 1974, and its state counterpart, regulate access to "education records." That term is defined at 20 USCA § 1232g(4)(A) as "those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution." With the exception of certain narrow categories of records identified at 20 USCA § 1232(4)(B)(i) - (iv), and not relevant here, the term is expansively construed to include all information, in whatever form, which satisfies the two-part test described above. The corresponding provision in Kentucky's act defines the term "education record" as:
Data and information directly relating to a student that is collected or maintained by educational institutions or by a person acting for an institution including academic records and portfolios; achievement tests; aptitude scores; teacher and counselor evaluations; health and personal data; behavioral and psychological evaluations; and directory data recorded in any medium including handwriting, magnetic tapes, film, video, microfiche, computer-generated and stored data, or data otherwise maintained and used by the educational institution or a person acting for an institution.
It too contains four exclusions which basically track the language of the federal exclusions, also not relevant here, and it too is intended to be inclusive. Inasmuch as the letters authored by students and their parents relate to Ms. Eisenback's son, and are maintained by the Spencer County Board of Education, they are clearly "education records" within the meaning of both the state and federal laws.
The Family Educational Rights and Privacy Act precludes the disclosure of personally identifiable student information to third parties in the absence of a parent or eligible student's prior written consent. It is also aimed at insuring parents of students, and students themselves if they are over eighteen years of age, access to their education records.
20 USCA § 1232g(a)(1)(A) provides:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school or such agency or at such institution, as the case may be, the right to inspect and review the education records of their children.
The converse of this rule is found at 20 USCA § 1232g(b)(1), which provides:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy or prac- tice of permitting the release of education records or personally identifiable information contained therein other than directory information [meaning information relating to a student not normally considered confidential including the student's name, address, telephone listing, and date and place of birth] of students without the written consent of their parents to any individual, agency, or organization, other than [to certain enumerated officials and organizations, or in connection with certain activities]. . . .
The goal of this legislation, as we understand it, was "to end denial of access to parents and students, and to prevent violations of student and family privacy rights by the release of unscreened records to third parties without parental or student consent." Note, "Federal Genesis of Comprehensive Protection of Student Educational Record Rights: The Family Educational Rights and Privacy Act of 1974," 61 Iowa Law Review 74 (1975). With respect to parent access to their children's records, the Act serves two purposes:
First, the student education records contain information that the parent needs in order to help plan the student's future. It can scarcely be denied that items such as educational testing results, attitudinal and behavioral studies, and disciplinary records relating to the student, are needed in order to make educational and vocational decisions for the student. Second, and equally important, parental access is needed to facilitate the correction of erroneous and harmful material that makes its way into students' files. Such inaccurate materials can have devastatingly negative effects on the academic future and job prospects of students if parents are unaware of their presence in the record and cannot have them corrected.
Id. at 94. It is reasonable to assume that Kentucky's Family Education Rights and Privacy Act, and the corresponding provision within the Act, 2 is intended to serve these same purposes. We must therefore conclude that the Spencer County Public Schools violated both the state and federal laws which regulate access to student education records when it denied Ms. Eisenback's request for the letters relating to her son. The Board may have also violated these laws when it released personally identifiable information contained in education records during its discussion of the letters at its public meeting on December 7, 1994. The issue of the applicability of the cited exceptions to the disputed records notwithstanding, it is the opinion of this office that the school system must release the letters to Ms. Eisenback, and that it is prohibited from further releasing those records, or the information contained therein, to third parties without her consent.
To the extent that the education records at issue in this appeal contain information relating to more than one student and the student's parent or parents, 34 CFR § 99.12(a) requires the Spencer County Public Schools to redact, or mask off, those portions of the records which disclose their identities, both parents and children. 3 That regulation provides:
If the education records of a student contain information on more than one student, the parent or eligible student may inspect, review, or be informed of only the specific information about the student.Although there is no corresponding provision in Kentucky's analogue to the Family Educational Rights and Privacy Act, it is apparent that the general prohibition on release of education records to anyone other than parents and eligible students, codified at KRS 160.705(1), would mandate redaction of any portion of the record which relates to another student.
Accordingly, the Spencer County Public Schools must redact the names and personally identifiable information pertaining to the authors of the letters before releasing them to Ms. Eisenback.
The Spencer County Public Schools and Ms. Eisenback may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 Ms. Stout erroneously identifies the exception for correspondence with private individuals as KRS 61.878(2)(h). The proper citation is KRS 61.878(1)(i).
2 KRS 160.715(1) thus provides: Parents of students or eligible students attending public institutions or who have been in attendance shall have the right to inspect and review student education records within a reasonable time of making a request to inspect.
3 This position was confirmed by Ms. Ellen Campbell, who is attached to the Family Policy Compliance Office of the United States Department of Education, which mediates disputes under FERPA. It was her office's view that FERPA's protection would extend to both the student authors' identities as well as those of their parents.